Atrocity’s Glass Booth

The below is the Author’s Original Version. Please see the PDF version for the Version of Record.

Introduction

“Ongwen laughs”, was the victims’ representative’s damning accusation in the trial of Dominic Ongwen, child soldier turned rebel commander, before the International Criminal Court (ICC).^[1] Ongwen, a false name invented by the abducted ten-year old child, grew up in the image of his captors to become a senior commander in the Lord’s Resistance Army (LRA) in Uganda.^[2] Charged with an unprecedented 70 counts of war crimes and crimes against humanity, Ongwen had the dubious distinction of being exceptional among the already exceptional defendants prosecuted before international criminal courts: a perpetrator who had been the victim of the very crimes of which he was now accused.

Holding the lowest rank of the LRA suspects and initially charged with only seven counts of crimes in relation to one attack,^[3] Ongwen had decidedly not been the prize catch amongst the ICC’s wanted.^[4] However, he became the face of the LRA before the court by dint of having outlived several more senior commanders and the only one the ICC succeeded in apprehending.^[5] The major obstacle to the Prosecution’s case was that this face still bore the scars of brutal indoctrination into the life of a child soldier –– a fact that the Prosecution acknowledged only to negate immediately, stating that “having suffered victimisation in the past is not a justification or an excuse to victimise others.”^[6] This sentiment found willing listeners in the judges of the ICC Trial Chamber, which handed down a unanimous guilty verdict, convicting Ongwen on 61 of the 70 counts of war crimes and crimes against humanity and sentencing him to 25 years in prison.^[7]

The Ongwen verdict has proved controversial, internationally as well as locally, dividing lawyers, scholars, civil society groups, human rights advocates, LRA ex-combatants, and their victims. This Article argues that the case reflects a troubling proclivity of the practices and scripts of mass atrocity trials to construct unidimensional perpetrator figures that are abstracted from the reality of mass atrocity. Rather than confront the “‘terror of the idea of humanity’… the terror that comes with accepting the perpetrator of radical evil as one of us”,^[8] trial narratives erect representative perpetrators who––unlike those in whose name they are called to account––have failed at the project of being human. Perpetrators who escape this mythification are still viewed as perpetual perpetrators, the moment of their participation in atrocity radiating backwards and forwards to demarcate the juridical bookends of their lives. These lives, moreover, are not seen as complex moral existences lived under situations of violent upheaval, but as consisting of active choices representing uncompromised agency.

The persistence of these perpetrator myths in mass atrocity trials ranging from that of Adolf Eichmann––the original man in the glass booth––to Ongwen’s, is somewhat counterintuitive. Parallel perpetrator portraits by historians, political scientists, sociologists, anthropologists, psychologists, and even legal scholars have been bewilderingly divergent and endlessly debated.^[9] Instead of narrating this diversity of perpetrator motivations and experiences, why have mass atrocity trials reproduced flat perpetrator stereotypes? The Article argues that the ways in which trials for mass atrocity construct and circulate perpetrators portraits are intimately tied to international criminal law’s attempt to justify itself as a normative project that claims to act in the name of humanity. Promoting a vision of the long arc of a stable peace punctuated by the extraordinary violence of mass atrocity, international criminal trials elect to narrate stories of extraordinary perpetrators who must be prosecuted and punished so that the ordinary business of humanity can continue apace. The Article claims that although the aims of international criminal law can only ever be imperfectly realised, the best hope for achieving them is through a different set of narratives that engage with the sober reality of mass atrocity. It argues that this involves viewing accused before international criminal courts not as ciphers who function as passive units for the attribution of responsibility, but as fully engaged members of the community of humanity who are answerable to, and capable of being formally reconciled with, their fellow community members.

Part I of this Article dissects the depictions international of perpetrators in international criminal trials to expose how they construct and respond to perpetrators of mass atrocity. Part II analyzes the ways in which these perpetrator portraits configure international criminal justice as a normative project. And Part III argues that international criminal trials should recast their perpetrator narratives so as to do justice to defendants and in order to realize the normative goals of international criminal law.

I. Perpetrator Portraits

Holocaust historian Raul Hilberg is reportedly said to have asked, “Wouldn’t you be happier if I had been able to show you that all the perpetrators were crazy?”^[10] This Part shows that though international criminal trials have resisted the impulse to portray perpetrators as “crazy”––which would, moreover, open up the possibility of the defense of insanity––they have succumbed to a different but no less worrisome tendency to render them unidimensional.^[11] This construction is rarely linear and often comprises competing and even dissentient narratives by a polyphony of actors both within and beyond the courtroom. However, as this Part shows, myriad factors in international criminal trials––ranging from the substantive and procedural rules governing these trials, to courtroom procedure, to the agents who serve as the primary mouthpieces of accountability for atrocity––conspire to elevate and diffuse flat perpetrator stereotypes.

Doubly Deviant, Doubly Damned

On this solemn occasion, mankind is once again assembled before an international tribunal to begin the sober and steady climb upwards toward the towering summit of justice… A people have stood firm, shoulder to shoulder, staring down the beast, the beast of impunity. The jackals of death, destruction, and inhumanity are caged behind bars of hope and reconciliation. The light of this new day-today-and the many tomorrows ahead are a beginning of the end to the life of that beast of impunity, which howls in frustration and shrinks from the bright and shining spectre of the law. The jackals whimper in their cages certain of their impending demise. The law has returned to Sierra Leone and it stands with all Sierra Leoneans against those who seek their destruction.^[12]

So begins the tale of horror recounted in the Opening Statement of Prosecutor David Crane in the CDF trial before the Special Court for Sierra Leone. The Opening Statement performs a vital structuring role in the narrative transactions of the trial, functioning as “the quintessence or argument… [that] must persuade without appearing to do so.”^[13] Not being considered as evidence strictu sensu, the Opening Statement in an international trial is the one moment where the prosecutor is at liberty––indeed, even expected––to creatively assemble, translate, and organize the case materials to construct a persuasive story that draws on both reason and affect.^[14] International courtroom conventions discourage interruptions during Opening Statements, with judges at international criminal tribunals expressing confidence in their own ability “not to be carried away by emotionalism and hyperbolic statements.”^[15] This may, however, underestimate the psychological primacy effects of a story well told against which all subsequent divergent narratives will be measured.

Prosecutor Crane’s Opening Statement can be read as seeding a narrative that derives its potency from a combination of rhetorical moves: on the one hand, the personification of “impunity” over whom the figure of the “law” prevails triumphant, and on the other, the invocation of phantasmagorical inhuman images to represent the vanquished perpetrators of evil. And while this Statement may be unusually melodramatic, it is not too removed from the exaggerated perpetrator images generally found in Opening Statements in mass atrocity trials.^[16] Recent scholarship analysing these statements across different international courts demonstrates recurrent patterns and strategies that depict perpetrators as ruthlessly power-hungry manipulators or as possessed of savage inhuman qualities that cast them beyond the pale of humanity.^[17] Opening Statements have described accused, inter alia, as embodying “sinister influences that will lurk in the world”;^[18] “malignant forces” who “took from the people everything that makes life worth living and “even banned love between human beings”;^[19] “dark shadows”, “evil spawn”, “hounds from hell”, and “beasts of impunity” who committed crimes that are “against nature, against logic, against life itself”^[20], among the more exaggerated labels signalling their inhumanity.^[21]

To be sure, given the adversarial nature of the trial, the defense has the opportunity to challenge these depictions, and trial transcripts show many instances of defense counsel pushing back against the prosecution’s fantastical statements and emphasizing the defendant’s human virtues, or at the very least, his ordinariness.^[22] And some of the most dramatic oppositional moments in mass atrocity trials have been produced by the accused themselves, such as the image of Eichmann, described by the prosecutor as “the destroyer of a people, an enemy of mankind… [who] was born human but… lived like a beast in the jungle”, transformed into a petty bureaucrat who grew more ghost-like with each successive day in his glass booth.^[23] It is nonetheless difficult for these counter-narratives to compete on equal terms with those set in motion by the prosecutor, the “demiurge of stigma”, in particular in the context of international criminal trials.^[24] International prosecutors not only make crucial decisions on who should be charged and for what crimes,^[25] but are also highly visible public figures with a significant media presence. Media reports on the work of the court often exhibit a slippage between the claims of the prosecution and those of the “court”, creating a genuine risk that prosecutorial public statements will end up being attributed to the court as an institution.^[26]

This stigmatization may be amplified in cases of high profile suspects where the ultimate trial outcome may almost come as an anti-climax following years of commentary by the press, civil society actors, and even academics speculating as to the guilt of the accused.^[27] It is not uncommon for trial participants as well as observers to labels accused undergoing trials with monikers such as “Butcher of Bosnia,”^[28] “Colonel of the Apocalypse”,^[29] and “the Terminator”.^[30] Women perpetrators of mass atrocity have been cast as monstrous in particularly gendered ways, with scholars arguing that they are labelled as “mothers, monsters, or whores” both inside and outside the courtroom.^[31] Pauline Nyiramasuhuko, the former Rwandan Minister for Minister of Family and Women’s Development, was decried as “a new kind of criminal”, whose case transcended jurisprudence. It was said that “[t]here is a shared concept across cultures that women don’t do this kind of thing”, that “it violates all our concepts of what women are.”^[32] In its Opening Statement, the prosecution described Nyiramasuhuko as “[a] woman who had lost every sense of feeling”.^[33] Biljana Plavšić, the former co-President of the Republika Srpska, was dubbed “Miss Necrophilia”^[34] the “female Mengele”,^[35] and “[s]o perfidious… that she could make Karadzic look like an honest man.” Serbian President Slobodan Milosevic was reported to have denied her entry into Serbia, allegedly stating that “[s]uch people, if they are not put in a hospital, must be kept from occupying any public function.”^[36]

International criminal justice may be a secular liberal institution, but these extreme depictions of perpetrators are reminiscent of the “ecclesiastical law of penance”, focusing attention not so much on the offense but on the offender’s sinfulness.^[37]

B. Perpetrators without Pasts

Similar to other courts, international criminal tribunals have limits on their temporal jurisdiction, which determine whom they can try and for what conduct.^[38] This nonetheless gives the prosecution the freedom to choose the starting and end points of the narrative within which to locate the specific acts with which the accused is charged.^[39] The bookends chosen for what is considered the legally relevant story are not only subjective but contingent on the framer’s purposes. As Judith Shklar argues, whether one is willing to consider remote causes in addition to proximate ones, will depend partly on what whether the emphasis is on rehabilitation or deterrence.^[40] Prosecutors, judges, and academics have differed on how far back the historical context should extend and what kinds of evidence as to this context should be considered admissible given that international courts already struggle with processing vast quantities of factual material.^[41] The greater the emphasis on individual responsibility and guilt––rather than on the collective violence that precedes and accompanies it––the narrower will be the trial’s spatiotemporal borders, yielding perpetrator snapshots shorn of their past and future selves. These portraits are particularly concerning in the case of perpetrators who were conscripted into violence –– not only former child soldiers like Dominic Ongwen, but also accused such as Issa Hassan Sesay, former battle group commander and interim leader of the Revolutionary United Front (RUF) in Sierra Leone.

Sesay was convicted on 16 counts of war crimes and crimes against humanity and sentenced to a total of 52 years, one of the harshest sentences ever handed down by an international criminal tribunal.^[42] Sesay’s defense had argued for a reduced sentence on the basis of his limited personal participation in the crimes for which he had been convicted.^[43] In addition, it attempted to expand the temporal boundaries of the mitigating factors the Special Court for Sierra Leone should take into account by pointing to Sesay’s previous forced conscription into the RUF at the age 19,^[44] and his subsequent role in the Sierra Leone peace process.^[45] According to the defense, Sesay’s loss of life choices made him yet another victim of the RUF’s founder, Foday Sankoh.^[46] Sesay also testified that he was forced to train for war with the RUF out of the need for bare survival. Having seen another abductee perish in the attempt to flee, he had been too terrified to leave.^[47] The Chamber acknowledged the fact of Sesay’s conscription but dismissed it as lacking any mitigatory force in relation to his crimes, since “he could well have chosen another path”.^[48]

The Chamber also gave short shrift to the defense’s argument emphasizing Sesay’s commitment to the disarmament and reconciliation process. The defense introduced several high profile witness statements, including from the former Special Representative of the UN Secretary General to Sierra Leone and the former President of the Economic Community of West African States (ECOWAS), who stressed that Sesay was an “anomaly in the RUF movement” without whose contribution the peace process would have faltered.^[49] The Chamber grudgingly conceded Sesay’s role in bringing an end to the civil war, but immediately set it against his failure to prevent or punish the attacks on UNAMSIL peacekeepers, labeling it as “a direct affront to the international community’s own attempts to facilitate peace in Sierra Leone.”^[50] The only dissenting note was struck by the Judge Mutanga Itoe, who chastised the majority for conspicuously failing to indicate whether Sesay’s proven contributions to the peace process should result in a reduced sentence,^[51] a position he endorsed on the basis that “[t]here may well have been no peace if Sesay did not embrace the peace process and take the bold and risky initiative to encourage disarmament.”^[52]

Dominic Ongwen, the child solider with an even more tortured history than Issa Sesay’s, fared only slightly better in the ICC trial process. The Ongwen case had been closely watched as a litmus test for the ICC’s ability to reflect nuances of perpetrator culpability.^[53] The Prosecution, from the very outset, was at pains to demonstrate that far from being an unusual case of victim-turned-perpetrator, Ongwen’s status as a “perpetrator victim” was a “familiar one in all criminal jurisdictions”.^[54] The fact of previous victimization was moreover no excuse for having victimized others.^[55] The Prosecution went on to emphasize that instead of deserting the LRA like so many other escapees, Ongwen chose to be a loyal soldier and rose to the upper echelons of the LRA hierarchy by going above and beyond what was demanded of him in executing the LRA’s horrific brutalities.^[56] This reasoning was echoed in the submissions of the victims’ representative, who argued that there was no legal basis for the “outlandish” claim that Ongwen’s abduction as a minor should absolve him from criminal responsibility and accused the defense of “invent[ing] a new theory for excluding criminal responsibility which is not existent in the legal framework of the Court”.^[57]

For the defense, in contrast, the inquiry into Ongwen’s responsibility had to start from the day of his abduction. The question was whether he “owned his own mind” from that day onwards, so as to be able to form the requisite intent for criminal responsibility, or if he was merely an instrument carrying out the intent of his captors.^[58] The defense portrayed Ongwen not as a free agent, but as much a victim of a war that was not his own, and whose will remained frozen in a child-like state from the time of his abduction to that of his surrender. According to the defense, fearing imminent death if he were to try and escape, Ongwen rose up the ranks of the LRA propelled only by a “higher survival instinct than others while under duress.”^[59] The defense also questioned the Prosecution’s motives in charging Ongwen with double the number of counts as those levelled against the LRA’s commander-in-chief, Joseph Kony.^[60] It reminded the court of the Prosecution’s admission as to the brutal indoctrination that child soldiers were forced to undergo, which was exacerbated in this case by the belief in Joseph Kony’ status as an all-knowing and all-seeing prophet and messenger of the spirit world, disobeying whom meant torture and death, including the death of loved ones.^[61]

In its decision confirming the charges against Ongwen, the Pre-Trial Chamber summarily dismissed the claim that Ongwen’s abduction and previous victimization had any bearing on his criminal responsibility, holding that “this argument is entirely without legal basis, and the Chamber will not entertain it further.”^[62] The same argument raised during the trial stage invited an equally brisk response by the Trial Chamber, which noted the fact of Ongwen’s conscription at a young age but adjudged it as having no bearing on the crimes he committed as an adult.^[63] Instead, it considered Ongwen’s capture by, and violent indoctrination into, the LRA to constitute a mitigating factor warranting a reduction in sentence from a potential sentence for life to a period of imprisonment for 25 years.^[64] This was affirmed on appeal. A dissenting opinion by Judge Ibáñez Carranza, however, favoured voiding the sentence and remanding the matter to the Trial Chamber to determine a new sentence that took into account, inter alia, the significant weight that should have been accorded to Ongwen’s previous victimization and the long term impact this had on his personality and moral development.^[65]

The sentencing judgment ameliorated, to some extent, the trial verdict’s perfunctory dismissal of the continuing impact of Ongwen’s indoctrination. However, the judgment on the substantive determination of his responsibility that denied the relevance of this previous victimization nonetheless reinforced the sense of Ongwen as a “man who had no childhood, shoehorned into one box, a reductionism of sorts”.^[66] The substantive judgement on Ongwen’s agency and responsibility thus not only failed to grapple with the complexities of his victimization, but was also in tension with the ICC’s own depiction of the continuing trauma and impact of child soldiering as embraced by the Lubanga Trial and Appeals Chambers, convicting Thomas Lubanga of the crime of recruiting and using child soldiers.^[67] The Lubanga judgments highlighted the pathos of “once a child solider, always a child soldier”, with the experience of child soldiering marking the victims for life and causing irreparable damage to their minds and souls.^[68] This narrative was replaced in the Ongwen verdict by a binary “before-and-after” story of a former child soldier transformed at the stroke of his eighteenth birthday into an adult with full blown moral agency and capacity to make informed choices.^[69]

In evaluating Ongwen’s agency “as if he had never been a child, let alone a child in the LRA”, the trial judgment presented Ongwen’s life story, not as one of painful continuities, but one of definitive ruptures: from non-responsible child soldier to fully responsible adult; from an indoctrinated victim lacking agency to a sadistic perpetrator who commanded a ruthless army. In doing so, it avoided confronting the dilemmas posed by “imperfect victims and tragic perpetrators”^[70] that had emerged time and again throughout the proceedings, not only in the defense’s arguments, but also through the evidence of radio intercepts and logbook entries of communications between the LRA, and in the conflicting witness statements of those who had served under and with Ongwen. These parallel and often fragmentary insights painted a much more complex picture of Ongwen’s character and the fact that far from being a permanent feature, victimhood is a status can be ceded or lost.^[71] Analysing the contrast between how the judgment ended up treating the phenomenon of child soldiering in the Lubanga and Ongwen, Mark Drumbl claims that the Ongwen verdict illustrates “how narratives of agency, choice, and constraint may become instrumentalized by judges to suit the prosecutorial impulse.”^[72] 

C. Pure Perpetrators

The Ongwen case raised another uncomfortable issue for the court, namely, whether Ongwen was truly acting of his own accord or whether his actions were taken under duress? The Ongwen defense asserted that the circumstances of Ongwen’s capture, his subsequent physical and “spiritual” indoctrination into the LRA, and his unsuccessful and near fatal attempts at escape meant that Ongwen had “lived most of his life under duress”, precluding criminal responsibility under Article 31(1) of the Rome Statute.^[73] The Pre-Trial Chamber showed little sympathy for this argument in its decision on confirmation of charges, which was subsequently mirrored in the Trial Chamber’s rejection of Ongwen’s defense of duress. The Trial Chamber drew a distinction between low-level abductees in the LRA, who were often subject to threats of imminent physical harm or death, and Ongwen’s commanding position at the time of the commission of crimes, when he was the source rather than recipient of such threats.^[74] The Chamber emphasized that higher level commanders, including Ongwen, exercised considerable discretion as to when and how to carry out Joseph Kony’s orders, depending on their personal assessment of what was right or wrong.^[75] Kony was often faced with non-compliance of his orders by senior commanders, to which he reacted by demoting rather than killing them.^[76]

The Chamber also placed weight on Ongwen’s failure to leave the LRA, noting that his one attempt at escape had met with relatively light sanctions and that other senior LRA commanders, as well as lower level soldiers whose activities were more tightly controlled, had successfully engineered escapes during the same period.^[77] Finally, the Chamber rejected the claim that a belief in Kony’s spiritual powers played a role in establishing the threat of harm for the purposes of the duress defense. The Chamber relied on witness testimonies to hold that this belief in Kony’s spiritual powers generally diminished for abductees such as Ongwen who had more experience in the LRA.^[78] The fear of threat of harm was moreover incompatible with Ongwen’s exceptional loyalty and performance as an LRA commander that earned him Kony’s trust and approval.^[79]

In assessing Ongwen’s defense of duress, the Chamber once again relied on a brightline distinction between Ongwen’s almost decade long indoctrination into the ranks of the LRA and his subsequent actions as an LRA commander –– an approach that was endorsed by the Appeals Chamber’s holding that Ongwen’s LRA experience as a child was “not central to the issue”.^[80] The reality seems to be considerably more messy. To begin with, the factual material that the Chamber relied on to assess duress is heavily contested among experts. Drawing on a decade of fieldwork, Carse Ramos has argued that LRA conscripts strongly believed that harsh punishments would be meted out for attempts to escape; whether this was factually true or not did not dent the fact of the belief. The actual possibility of escape was moreover only reduced with the greater level of surveillance over senior commanders.^[81] Even more fundamentally, Ramos questions the narrative that severs the link between Ongwen’s socialization as a minor within the LRA and his purported capacity to exercise independent moral judgment once he came of age.^[82] Scholars have argued that the LRA is “both a political and spiritual project that reimagines the child as someone who can be purified and made into a superior being, capable of delivering Ugandans from evil.”^[83] Ramos likens the LRA to Erving Goffman’s concept of a total institution –– a socially isolated and tightly controlled space regulated by a single authority, where an individual lives together with similarly situated persons for a considerable period of time.^[84] She asks why it should come as a surprise that Ongwen grew up to be a loyal LRA soldier in this enclosed normative environment, quoting a civil society representative she interviewed as saying: “[in Uganda] a child of 7 years has an empty mind, and the things that you begin to put in the mind of that child that is what the child grows with and for me Ongwen grew up with that.”^[85]

In a separate study conducted by transitional justice expert Erin Baines, another interviewee reasons that Ongwen’s exceptional performance in the LRA was not necessarily indicative of his personal will, because “in the bush if you are told to do something and you do not do it then you would be killed. That is why if you are told to kill 100, you would kill a thousand so that you leave no doubt about your loyalty and so that you could be thanked.”^[86] For Baines, what emerges from the cacophony of local opinions on Ongwen’s culpability is that, while Ongwen may not have entirely lost his ability to judge right from wrong, he may either deliberately or unconsciously have suppressed his moral sensibilities in order to survive.^[87] Political scientist Adam Branch echoes and extends this argument to argue that in situations of chronic violence, to treat consent and agency as unqualified mental states belies reality.^[88] Rather than stable beliefs in the justness of a cause, individuals like Ongwen may also regularly cycle between phases of doubt, uncertainty, and terror. “Ongwen”, Branch says, “had been indoctrinated and was under duress, but he also had access to other moral worlds and came to his own decisions. He laughed [as he killed] and he tried to flee.”^[89]

Ongwen is not the first time that international criminal tribunals have been confronted with complex questions of agency and duress in conflict situations. The International Criminal Tribunal for the former Yugoslavia was faced with similarly uncomfortable facts in its judgment involving another compromised perpetrator, Dražen Erdemović, an “ordinary man who found one day that the moral terrain around him had changed beyond recognition.”^[90] An unemployed former locksmith in Bosnia-Herzegovina, the young Croat enlisted in the Bosnian Serb Army of Radovan Karadžić’s Republica Srpska, the Serb enclave within Bosnia, to meet the needs of his growing multi-ethnic family.^[91] On the fateful day of July 16, 1995, Erdemović and his unit were dispatched to a collective farm near the city of Srebrenica for an undisclosed mission. Once there, they were informed of the impending arrival of several hundred captive Muslim men and boys, who were then lined up in groups of ten. Erdemović, along with others, was ordered to shoot––a command he initially resisted only to be told that he could either execute the order or join the men in order to be killed. Fearing for his life and for the lives of his family, Erdemović reluctantly participated in the slaughter and ended up shooting around seventy Muslim men.^[92] The guilt ridden Erdemović subsequently told his story to a journalist from Le Figaro, whereupon he was promptly arrested and transferred to The Hague. Initially having pled guilty to one count of crimes against humanity, he later appealed his conviction on the ground that he had acted under duress.^[93]

Since the ICTY Statute does not explicitly provide for the defense of duress, the ICTY Appeals Chamber was confronted with the novel question of whether duress should be available as a defense to a charge of crimes against humanity or war crimes that involve the killing of innocent people. By a majority of three votes to two, the Chamber rejected duress as a complete defense, not based on what the reasonable person could be expected to do in these circumstances, but as “an absolute moral postulate which is clear and unmistakable for the implementation of international humanitarian law.”^[94] The majority thus rejected the proposition that the availability of duress in cases where the victim would have died in any case should be assessed on a utilitarian balancing of harms for and against killing.^[95] According to the majority, trained soldiers, whose very profession contemplated the possibility of death, could be expected to display greater fortitude when faced with threats to their lives and therefore should not be exempted from criminal responsibility for killing innocent civilians.^[96]

A powerful dissent penned by Judge Antonio Cassese, widely considered one of the architects of modern international criminal law, challenged the majority’s absolutist logic and denial of duress. Had Erdemović refrained from shooting, claimed Cassese, it would have been a forfeit of his life “for no benefit to anyone and to no effect whatsoever apart from setting a heroic example for mankind (which the law cannot demand him to set): his sacrifice of his own life would be to no avail.”^[97] Law should not demand the unreasonable from its addressees by “set[ting] intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behavior falling below those standards.”^[98]

There are two ways to interpret the differences in opinion in Erdemović. The first, is to view the majority, as Saira Mohamed argues, as having posited a special category of persons against whose standards Erdemović’s conduct should be judged. The majority was willing to concede that a reasonable person faced with the threat of death would have behaved as Erdemović did. However, Erdemović was not an ordinary person, but an ordinary soldier. To ask more of Erdemović was not to demand that he act like a hero, but to emphasize that he deviated from the conduct expected of a trained fighter.^[99]

The second way to understand Erdemović, is, as Rosa Brooks suggests, by seeing the majority as having changed the juridical time frame for evaluating Erdemović actions, not by contracting it as in Ongwen, but by expanding it, so that Erdemović was judged not for the stark choices he faced at Srebrenica, but for how he ended up there to begin with.^[100] On Judge Cassese’s reading, it was happenstance, coincidence, and sheer moral luck that led Erdemović to the unimaginable precipice of having to shoot at his fellow Bosnians in a war that was not of his making and in which he was as much of a victim.^[101] For the majority, however, Erdemović’s fate was sealed not by circumstances beyond his control at the time he pointed his gun at innocent men and boys, but by his own choices that led him to be part of the firing squad near Srebrenica. This view of Erdemović’s crime requires traveling back in time to his “repeated failure to take a real stand, to insist on loyalty to any one group or idea.”^[102]

It would be easy to dismiss the fate of the defense of duress in both Ongwen or Erdemović as a fact-specific evaluation that simply failed to meet the elements of duress. However, the reasoning in these cases must be viewed in light of the somewhat orphan status of defenses in international criminal law and the general posture adopted towards them by international criminal courts. The constitutive instruments of the ad hoc tribunals conspicuously omitted to codify admissible defences.^[103] The case law of the ad hoc international criminal tribunals on defenses is sparse and even when accused have raised defenses such as self-defense, duress, and military necessity, they have almost never succeeded in persuading the judges that they were justified or excused in their conduct.^[104] And although the Rome Statute of the ICC has been described as rehabilitating defenses in international criminal law,^[105] even at the ICC, defenses barely featured in the practice of the court in the first decade of its existence.^[106]

For accused faced with the “existential and legal loneliness”^[107] of action in the midst of chronic situations of violent conflict, the message of international trials may well be that “criminal law is not good at dealing with situations of conflict and that penal codes are not the best moral guides for persons who have to make difficult choices.”^[108]

* * *

Criminal law bifurcates. It demarcates the permissible from the prohibited. And it designates when someone deserves its protections and when they must suffer its consequences. International criminal trials too order and categorize the world of mass atrocity, divvying it up between victims and perpetrators. As the next Part will discuss, in so doing, they also monumentalize these categories in an effort to navigate normative tensions in the project of international criminal justice.

II. Perpetrators and the Burden of Representation

One way to trace the arc of the project of international criminal justice is through the eyes of its ardent observers. The revival of international criminal law as part of a “Grotian moment” in the 1990s,^[109] was swiftly followed by reflections on international criminal law’s “identity crisis”,^[110] and later by the current era described as international criminal law’s state of “perpetual crisis”.^[111] This perpetual crisis takes the form of accusations of victor’s justice, selective enforcement, and fairness deficits in an environment in which international criminal courts must continuously work to secure moral backing and political and financial support , which they do through grandiose promises to “end impunity”, “secure peace” and “repair societies”. Yet, they can only ever indict and prosecute a fraction of the population actually involved in the collective violence that characterizes the commission of international crimes.^[112] Prosecutors at international criminal tribunals like the ICC must contend with practical budgetary considerations in making decisions on where to concentrate their investigative actions and, consequently, who will be charged.^[113] And this is only the beginning of their travails. The arrest and apprehension of international criminal suspects depends on state co-operation, which means that a case like Ongwen with only one suspect (who voluntarily surrendered) available for making good on the court’s ambitious claims is hardly a rarity.^[114] This state co-operation may at times need to be purchased at the high price of ignoring the criminality of the state’s own officials and agents. It may also require building an evidentiary base through insider witnesses who are not prosecuted in exchange for information.^[115]

This Part argues that the response to international criminal law’ perpetual crisis and the manifold compromises that the work of international criminal courts involves has unfolded along two main lines: the first seeks to explain the basis on which international criminal courts can claim the authority to prosecute and punish perpetrators of mass atrocity, and the second legitimates the choice to focus on the few accused who end up being prosecuted. Perpetrator micro-histories forged by international criminal courts are central to and driven by both these justificatory projects.

A. Judging in Humanity’s Name

Commenting on international criminal law as an intellectual project, Gerry Simpson has quipped, “Never have so many written such great stuff about so little.”^[116] Yet, this outpouring of industry and creative scholarship has struggled to grapple with two enduring issues confronting international criminal justice: what are international crimes and how are they distinct from domestic crimes,^[117] and even if they are different, what gives international criminal courts the authority to prosecute and punish the perpetrators of these crimes?

Scholars seeking to explain the coercive authority of international criminal law, and thereby that of international criminal courts, fall into three broad theoretical camps: state failure, gravity, and humanity.^[118] The first of these camps bases its argument on the state’s unwillingness or inability to fulfil the minimum guarantees of protection from harm involving instances of serious crimes, resulting in a forfeiture of its monopolization of the right to punish. Given the importance of accountability and deterrence for serious crimes, it is then incumbent upon entities that may be “capable of adjudicating justly” to step into the vacuum as a matter of justice.^[119] Another version of the state failure theory claims the existence of a collective interest in a law in force against governmental abuses in a scenario where the government of the territorial state is incapable of proscribing these crimes or may even be implicated in their commission.^[120] These accounts may be persuasive in explaining why the state that has a nexus to the criminal conduct may forfeit the legitimacy to punish; they are less successful in explaining what gives an international tribunal the right to do so in its stead.^[121]

The same shortcoming is evident in theories that justify international criminal jurisdiction for maximally evil crimes that meet “some threshold of awfulness”.^[122] The heinousness of the crimes then becomes a reason to ensure that they do not go unpunished, and by extension, forms the basis for prosecution by international courts.^[123] As Giudice and Schaeffer argue, for instance, international crimes are egregious wrongs and international criminal authority for their prosecution stems from a “duty to govern” that attaches to the institution that is best placed to achieve the common good of punishing them.^[124] Quite apart from the fact that there is no clear way to distinguish what types of conduct may be sufficiently heinous, there remains the further question of why responding to them should be considered an international public good.^[125] The criterion of “heinousness” focuses on the entity being acted upon––“the crimes should be punished”––rather than the agent calling for an accounting––“we ought to call them to account”––and is thus unresponsive to the question of which entity is entitled to carry out this punishment.^[126]

It is precisely this last question that “humanity” theorists attempt to answer by calling attention to the distinctiveness of the harm caused by international crimes and who it impacts.^[127] For Larry May and David Luban, international crimes such as genocide and crimes against humanity harm humanity as such. On May’s account, by treating the victim as a mere representative of an ethnic or racial group, the perpetrator assaults his humanity on the basis of characteristics over which the victim lacks any control or agency.^[128] May combines the distinctive harm of these offenses with an “international harm principle” that justifies their prosecution and punishment by international criminal tribunals.^[129] Luban too views international crimes as violations of humanity, but in two different senses: as a form of group-based violence attacking our “humanness” that consists in our status as political animals, and as an attack on “all of humankind”, since all of humanity is at risk of being attacked on the basis of group affiliations they are powerless to alter.^[130] While this confers authority to punish in all of us as members of humanity, states and international tribunals act as our proxies to guarantee procedural fairness in punishment.^[131] May and Luban both develop some crucial insights into the distinctiveness of the wrong that is caused by international crimes. They are less successful, however, in demonstrating the connection between the universal interest in the prosecution of these wrongs and the authority of international criminal tribunals to do so.^[132]

The account that comes closest to a persuasive justification for this authority is Antony Duff’s relational theory of responsibility.^[133] Duff shares the insight that international crimes are “those wrongs that properly concern us all simply by virtue of our humanity (our membership in the human community)”.^[134] Their perpetrators must therefore be called to account by and have to answer to the universal community of humanity as a whole.^[135] For Duff, however, the character of the criminal law as a legal and political institution necessitates that humanity constitutes not just a moral, but also a political, community on whose behalf the law can call violators to account.^[136] Duff proposes two potential solutions to this challenge. The first is to view the very existence of international criminal law and the development of international criminal law institutions as an attempt to translate an aspirational political community into a genuine international civil order that it creates and sustains.^[137] The second is to see the political community as one of the international political community of nation states. This community can act as a proxy for the domestic political community to which the accused must answer in situations where the officials in the latter community are complicit in the wrongs that have been perpetrated.^[138]

Notwithstanding the reservations that Duff himself expresses as to his version of the humanity theory’s ability to account for the standing of international criminal tribunals, it is the one that most closely tracks the rhetoric of international criminal justice institutions that claim to simultaneously represent humanity and, in so doing, call it into being.^[139] As the Rome Statute of the ICC states, the court has jurisdiction over “unimaginable atrocities that deeply shock the conscience of humanity” with the mandate that “the most serious crimes of concern to the international community as a whole must not go unpunished.”^[140] The ad hoc international criminal courts too regularly invoked the imperatives of humanity in their judgments.^[141] The website of the court introducing the ICC is emblazoned with a quote from former UN Secretary-General Kofi-Annan, declaring “[t]his cause… is the cause of all humanity”.^[142] ICC judges too have referred to the court as executing the “interests of the world community to put persons accused of the most heinous crimes against humanity on trial”^[143] with punishment serving to express “the international community’s condemnation of the crimes”.^[144]

As critical scholars point out, however, all this “we-talk” still leaves open the nature of this presumptive political community, who gets included or excluded within its boundaries.^[145] And this is where the figure of the perpetrator assumes a central role. The trial sets “one party, the prosecutor, on behalf of international society against another, the defendant.”^[146] In order for the trial to do so, it needs to recognize the defendant as a member of the community –– if thiswere not the case, the defendant could object to being made answerable to the community in the first place, since he would not be bound by its norms or responsible for having broken them. However, the trial simultaneously needs to construct a divide between the defendant who is judged and those who claim to judge him (and may also be complicit in the wrongdoing). International criminal trials square this circle by imagining humanity as a normatively integrated collective, that extends normative recognition to everyone, including the defendant, and regardless of his or her consent.^[147] This recognition is, however, hierarchically ordered. A perpetrator who breaks the community’s bonds is rendered legible in humanity’s collective order, but only as someone who ruptures its normative bonds.^[148] The normative recognition granted to the perpetrator is thus “one of minimal extent, for this figure represents one of mankind’s least empowered members, subordinate to others’ allegedly legitimate coercion. It is also a recognition that is neither benevolently granted nor beneficial to the receiver.”^[149] Rather, this “inclusion via liability” provides a justification for the perpetrator’s liability to the punitive authority of those who claim to speak for the community that he is alleged to have injured.^[150]

At the same time, international criminal trials merge the “we” of flesh-and-blood victims who have suffered injury into an abstract representational victimhood in whose name criminal justice is exercised by the agents of the international community.^[151] This framing, as Sara Kendall and Sarah Nouwen argue in their critique of international criminal justice, is not accidental but also serves as a form of displacement. The narrow focus on the figure of the perpetrator enables the collectivity that constitutes the abstract international community represented by court-enacted justice to bracket its own moral responsibility towards the harm and those who suffer this harm.^[152] Crucially, it incentivizes the construction of Manichean narratives with wholly innocent victims on the one hand and unidimensional perpetrators on the other –– perpetrators who must bear the weight, not only of the harm they have perpetrated, but also of the justificatory authority of international criminal law.

B. International Criminal Trials as Political Trials

Even if international criminal courts are successfully able to assert the authority to try the accused in the name of humanity, this still leaves open the question of who exactly they are justified in calling to account and what they hope to accomplish through this process. One way to evaluate the international criminal trial is to refer back to the aims of international criminal justice that the trial is ostensibly tasked with accomplishing. These goals, which include retribution, deterrence, expression of community values, history writing, peace and reconciliation, have been repeatedly asserted as justifications for the establishment of international criminal tribunals, but are much debated in practice.^[153] And at least some of them, such as deterrence, seem even more implausible if international criminal courts will only ever manage to try a handful of accused from among the thousands of individuals who were complicit in the perpetration of atrocity.^[154]

Some scholars have responded to this charge by arguing that the focus on the few becomes problematic only if international criminal trials are viewed as standard criminal trials. International trials for mass atrocity, the argument goes, are of course criminal trials, but they are also more than that. Indeed, they can be viewed as classic political trials, “going beyond the warp and woof of law” to “the tensions of our public identity, our myth of history, and our sense of destiny.”^[155] To say that they are political does not mean that they are partisan:^[156] not every political trial is political in the same way and “[n]ot all political trials contrive to set up scapegoats… certain political trials are creative, placing before society basic dilemmas which are clarified through the trial.”^[157] Political trials that are outside the rule of law, as it were, may certainly devolve into show trials with minimal to non-existent fair trial guarantees and predetermined outcomes, à la the Stalinist 1930s Moscow show trials,^[158] and the Nazi People’s court trials,^[159] both of which were set up to purge political opponents and those hostile to the regime. And various trials for mass atrocity have certainly been perceived as, at the very least, at risk of descending into show trials motivated by vengeance.^[160]

Rather, trials for mass atrocity, it is argued, are classic political trials in Christenson’s sense of presenting Gordian knots in the law: “While a court may cut through the issues with a rule in a sharp decision – the defendant may be convicted or acquitted – the dilemmas of responsibility, morality, representation, or legitimacy remain. The story and the dilemma continue no matter how the court decides.”^[161] International criminal trials might be about avoiding impunity, but they are also about historical truth and competing conceptions of national identity –– past, present, and future.^[162] In this sense, their aims may be destructive or didactic, directed at the elimination of real or perceived enemies as well as public pedagogy.^[163]

The enemy sought to be destroyed in destructive trials for mass atrocity can be real or imagined, individual or collective and the destruction itself can be symbolic or physical.^[164] In all cases, though, the enemy is the “other”, against whom legal process is deployed as a weapon.^[165] Jens Meierhenrich and Devin O. Pendas cite, as an extreme example of this “othering”, U.S. Chief Prosecutor Robert Jackson’s famous opening statement at the International Military Tribunal for Nuremberg, referring to the defendants as “represent[ing] sinister influences that will lurk in the world long after their bodies have returned to dust” and emphasizing that “Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”^[166] But they also refer to other trials for mass atrocity crimes that were surgically used to destroy both individual and collective enemies, including Adolf Eichmann in Jerusalem, domestic and international trials of Nazi war criminals, and the community based gacaca courts set up in Rwanda to process cases related to the 1994 Rwandan genocide.^[167]

As the analysis in Part I showed, while the destructive element of the trial may not predominate in every case of mass atrocity, it is also far from exceptional. Even when the accused is not painted as monstrously evil, he is nonetheless often perceived as representing an idea, a movement, or a collective, that poses a threat. He is also what makes the threat containable. As Pendas argues, criminal trials in the postwar period were particularly useful for identifying “a (generally small) group of “intolerable” cases which facilitated the reintegration of the (much larger) group of “ordinary” followers who could be rehabilitated into the postwar order”.^[168] On this view then, handpicking and surgically eliminating the few exceptional perpetrators is not a flaw, but a virtue of international criminal trials for mass atrocity, which makes possible the absolution and re-integration of the vast majority of “ordinary” people caught up in mass atrocity.

Analysing postwar trials such as that of Eichmann, Pendas also claims, however, that at the time of trial, Eichmann himself hardly continued to pose any credible threat to the Jewish people. If one were to regard Eichmann as representing the ever-present threat of anti-Semitism instead, the trial in Jerusalem would morph into more of a normative-political communicative project.^[169] This is precisely the thesis that Lawrence Douglas advances in his description of the “great perpetrator trials”, labeling them exercises in collective pedagogy.^[170] The perpetrator trial, according to Douglas, is a specific kind of trial that does not merely carry out legal justice, but “actively re-impos[es] norms into spaces in which rule-based legality has been either radically evacuated or perverted.”^[171] The didactic legalism of the perpetrator trial consists of faithfully representing the broader historical context of acts of mass atrocity, drawing from this historical record a moral story that can shape collective memory, and honoring the memory of victims, both dead and living, by providing a public space for testimony.^[172]

As Douglas goes on to argue, however, history and memory do not as much enter willy-nilly into the trial, as they get funneled through the formal and legal filters of the trial process. The history that trials narrate and the memories they construct are inevitably a product of compromise with the reality of the context in which they take place.^[173] A further filtering takes place through the formal and structural features of the trial process, and that includes practices of responsibility attribution to individuals for criminality that is inherently collective in nature.^[174] Douglas rejects the critique of this attribution as a form of scapegoating, arguing that rather than displacing the wrongdoing on an innocent defendant, international trials condense the wrongdoing onto the figure of the perpetrator. This condensation supports rather than detracts from the pedagogical and symbolic aims of the perpetrator trial.^[175]

Douglas is surely correct that the idealism of international criminal trials will always be tempered by the reality of their political constraints. However, Douglas’ account does not capture fully the stakes of the atrocity equivalent of attempting to see the world in a grain of sand. International criminal trials do not merely reduce the complexity of violence to a finite set of issues and players that is easier to digest and communicate, but they also attempt to demonstrate that the figure upon whom responsibility for this violence is condensed is not chosen out of sheer malice or caprice. Scholars have argued that the excessive stigmatization of Ongwen in the trial process can in part be explained by the Prosecution’s reliance on the Ugandan government for carrying out investigations––resulting in a failure to charge crimes committed by government forces–– and its inability to apprehend other LRA suspects, turning Ongwen into a symbol of prosecution of the entire LRA.^[176] But even beyond Ongwen, as the perpetrator portraits in Part I demonstrate, justifying the normative project of international criminal justice in light of its political fragility and selective enforcement, can result in the case being viewed “as a symbol of everything that happened in the area” with the accused “portrayed as the prototype of a war criminal.”^[177]

If, as this Part has argued, part of the impulse behind perpetrator portraits in international criminal trials is to legitimize the choice of the defendant as a punishable subject who has forfeited his standing as an equal member of this community of humanity in a particularly egregious manner, would changing perpetrator narratives mean abandoning the normative project of international criminal justice?

III. Recasting Perpetrator Narratives

The trial proceeds, we are told, “by the construction and deconstruction of narrative”.^[178] The narratives that structure the trial process do more than simply articulate existing ideologies. They also partially constitute the social reality that shapes our imagination.^[179] Trial narrative in international criminal trials is a battle for the consciousness –– of judges, victims, domestic political constituencies, and an amorphous international community.^[180] This appeal to the imagination may proceed through uncovering silences and revealing oppression, but at times at the cost of enacting new ones.^[181]

This Part argues that perpetrator portraits that have been so vital to the construction of trial narratives in international criminal law should be recast and retold. This retelling will have to begin with recovering the defendant as a moral agent, rather than passive object, in international criminal proceedings.

A. Defendants as Members of the Moral Community

For an individual who is ostensibly the main character around whom the entire criminal process revolves, the defendant has paradoxically been “the great absent figure” of the international criminal trial.^[182] This absence is in contrast to the defendant’s centrality to the field of “perpetrator studies”, an inter-disciplinary area of study that has become a serious focus of scholarly enquiry in the wake of the Second World War.^[183] Even in this broader field, however, there is often discomfort expressed with both the morality of giving perpetrators an active voice in the narrative as well as the reliability of perpetrator accounts.^[184]

Scholars have argued that the defendant in an international trial is reduced to a passive spectator, acted upon rather than acting, a mere pretext whose mini-narrative only serves to drive and spotlight the broader narrative of mass atrocity the trial seeks to construct and foreground.^[185] As Part II described, not infrequently, it is this accused, the other, like Eichmann “the man, laden with hideous specific guilt, and the cipher, standing for the whole history of anti-Semitism”^[186] who gets filtered and made visible through the international criminal trial. There is, however, another way for the international criminal trial to view the accused, not as Susan Sontag said of Eichmann, as one of the “great shrieking but unheard creatures from the paintings of Francis Bacon,”^[187] at whom audiences gape like animals in a zoo,^[188] but as a moral agent with whom we share a commonality. In other words, the practices and representations in international criminal trials should address alleged perpetrators of mass atrocity not as individuals who are granted corrective inclusion through liability into the community of humanity, but as responsible agents whom the trials calls to account as equal members of the normative community whose values they may have transgressed.^[189] This also means that the accused cannot be treated merely, or even primarily, as stand-ins and vehicles for the communication of moral messages, but should be viewed as responsible subjects in their own right.

To treat the defendant, not as an outlaw against whom the international community must defend itself or whom it must vanquish, is not to only do justice to the victim, who is regularly invoked to legitimate the project of international criminal justice, but also to do justice to the alleged offender by recognizing his status as a member of the political community who is both bound and protected by its values.^[190] As Antony Duff, the main proponent of this communicative theory of punishment has argued, by calling upon the defendant to answer for himself, the trial treats the defendant as a civic member who, if he plays his role in the trial by explaining himself and his conduct, in turn recognizes himself as answerable to his fellow community members and thereby their right to judge him.^[191] Through this two-way process of communication, the defendant in the trial for mass atrocity is no longer seen as a unit for the attribution of responsibility or a passive object of judgment, but as one who must be actively engaged in the process of answering for his conduct.^[192] While a trial that recognizes this moral agency of the defendant is part of a retributive justice process, it is nonetheless capable of symbolically performing the role of reintegration of both victims and perpetrators in the aftermath of violence.^[193] It does so through enacting rituals of citizenship which formally reconcile victims, offenders and others actors in the trial as members of a common normative political community.^[194]

Duff is careful to qualify his theory as an ideal account of the criminal trial in transitional justice, rather than as a descriptive statement of existing trials for mass atrocity, or even as a realistic claim as to what they can become.^[195] Indeed, the limited empirical work on the experiences of the accused in international criminal trials suggests that the current practice of trials serves to alienate rather than engage alleged wrongdoers. Qualitative studies on defendants after the conclusion of the trial proceedings report overwhelmingly negative experiences of the trial process, including feelings of helplessness, incomprehension, shock and injustice. These reactions, moreover, do not appear to be contingent on the outcome of the trial and are shared by accused who were held guilty as well as those who were acquitted.^[196]

All is not lost, however. To be sure, there will always be defiant defendants who will refuse to concede the legitimacy of the trial process and use it as a forum for political propaganda and personal legacy building.^[197] Even some of these hostile defendants, however, may gradually be drawn into engaging with the trial process, almost despite themselves.^[198] The defendants at Nuremberg are reported to have become “fascinated by the fairness of the adversary procedures, and decided to play the justice game after all.”^[199] A more recent example is the ostensible conversion of ICTY defendant Ratko Mladić, who had initially denounced the ICTY as, “not a court”.^[200] Mladić subsequently changed his stance, declaring instead, “I would like to improve my relationship with this Court… because I would like to take part in this as an accused, and I would like to do that in a fair manner. All you’re going to get from me is the truth and nothing but the truth.”^[201]

As scholars point out, most defendants do in fact engage with the process of the international criminal trial and, in rare cases, international criminal courts have also been a site for the expression of remorse and repentance.^[202] And while there is certainly the possibility that these acts of repentance may not have been entirely sincere but driven by the prospect of a mitigation in sentence, given that the practice of international criminal trials has seldom shown any significant discounts in sentencing on these grounds, it is not implausible that at least some of these expressions of remorse were genuinely felt.^[203] The devastatingly raw confessional statements and public apologies of accused Kaing Guek Eav, alias Duch, former Khmer Rouge prison commander tried before the Extraordinary Chambers in Cambodia, were, for instance, accompanied by his insistent desire that “humankind might know and accept [him] as a person again.”^[204]

The world can scarcely begin to accept the accused as a person again, though, if the trial refuses to accord him that equal status as a member of the community of humanity.^[205] To recognize the defendant as a complex moral agent who possesses the capacity for self-transformation is the beginning of that process.^[206]

B. Trials as Communicative Practice

Labelling the Eichmann trial as a form of theatre in the most profound sense, Susan Sontag argued that problem with the trial was not so much that it strained at the limits of legality,^[207] but that there was a tension between its dramatic moral commitment to hold tragedy in memory and its juridical form of scientific neutrality.^[208] In the words of Harold Rosenberg, the trial’s attempt to undertake “the function of tragic poetry” was thwarted by its enactment “on a world stage ruled by the utilitarian code”, and by its aim of “giving a public shape to a tormenting memory” while being forced to obey the narrative conventions of the trial as a legal genre.^[209]

This contradiction has generated two opposing schools of thought on the ritual function of trials for mass atrocity. On one side are those who argue that the contradiction should be resolved in favour of the pedagogical aim of influencing and transforming the society’s collective memory of past atrocities by recasting the courtroom into a “theatre of ideas”.^[210] Trials that pursue this political purpose are not inherently flawed or illegitimate, but rather should be judged on the quality of their core political message. “Liberal show trials”, in the phrase coined by Mark Osiel, are those that are “self-consciously designed to show the merits of liberal morality and to do so in ways consistent with its very requirements”.^[211] In order to relay and enhance this pedagogic message, Osiel claims that such trials should deliberately emphasize, rather than reduce, the sense of theatricality and spectacle. The stories that they tell, and the ways in which they tell them, must therefore embrace the poetics of storytelling and engage their audiences in compelling narratives.^[212] Moreover, the imperative of capturing the attention of their audiences may require trials to preserve the illusion of an impartial truth and depoliticized justice, whereby the influence of power in the construction of the trial narrative is deliberately concealed or sacrificed in the interests of social solidarity.^[213]

Osiel is not alone in this championing of the model of the liberal show trial,^[214] a notion that was prefigured in Judith Shklar’s defense of the Nuremberg trial. The trial, Shklar wrote, and in particular its violation of the principle of legality, was “simply unjust” but “strict justice [was] not everything”.^[215] The saving grace of Nuremberg, according to Shklar, was not that it was not a political trial, but that its politics was conducive to achieving liberal ends, serving to “promote legalistic values in such a way as to contribute to constitutional politics and to a decent political system”.^[216] Describing Nuremberg as a “great legalistic act… a powerful inspiration to the legalistic ethos” on account of its inner structure and aim,^[217] Shklar insisted that “it is not the political trial itself but the situation in which it takes place and the ends that it serves which matter. It is the quality of the politics pursued in them that distinguishes one political trial from another.”^[218]

Not everyone agrees, however. Hannah Arendt’s commentary on the Eichmann trial contained not only the much debated concept of the banality of evil, but also a critique of trials as spectacle. Arendt saw the Eichmann trial as nothing more but also nothing less than a criminal trial and insisted that its sole aim should be to evaluate and render judgment on the charges brought against the accused.^[219] For Arendt, justice required that the entity on trial was the accused, Eichmann, and not the suffering of his victims, or the German people, or anti-Semitism as an ideology.^[220] Arendt’s emphasis on Eichmann as “the man in the glass booth built for his protection” ^[221] drew an implicit contrast with the duality of the glass cage that appears purpose built for the trial as a spectator sport. Justice, according to Arendt, shunned all limelight and demanded seclusion.^[222]

Arendt’s critique finds supporters in contemporary debates in international criminal justice, with scholars arguing that trials for mass atrocity should be seen no differently from ordinary domestic trials and their routine administration of criminal justice.^[223] The liberal show trial, on this view, compromises its own liberal message by adopting a consequentialist posture towards the individual accused to broadcast broader lessons in political morality.^[224] The focus on this pedagogical purpose, moreover, comes with the inevitable risk that the structure and procedure of the trial process will be distorted to favor certain pedagogical outcomes, the unintended consequence of which would also be to view an acquittal as a didactic catastrophe.^[225]

Scholars who advocate for this ascetic version of the international criminal trial readily acknowledge that the everyday work of these trials is unlikely to command the transfixed attention that is inspired by trials as dramaturgy.^[226] Even the Eichmann trial that began as “a form of folk opera” with the prosecution case morphed into a “dull spectacle with no assault on emotions, with Dr. Servatius [the defense counsel] and Eichmann conducting their dialogue not for the gallery’s benefit but solely for the ears of the three Israeli judges”.^[227] For these scholars, however, the soporific narratives produced by law’s preoccupation with proceduralism and tiresome technicalities is a virtue rather than a vice, a necessary antidote to the perils of biased accounts influenced by the desire to produce sensationalist stories that will be favorably received in the court of public opinion.^[228]

There may, however, be a different way for the trial to resolve this tension, not––to paraphrase Ron Christensen––by brutally cutting the tangled political issues tied in tight knots, but by reflecting on the knot presented by the case so that it paves the way for understanding the next one that much better.^[229] As Part II argued, modern international criminal trials claim to prioritize individual guilt, owing not simply to pragmatic resource constraints but also to the philosophical conviction that this individualization generates societal reconciliation by avoiding the prosecution of the many who were “merely” complicit in atrocity. The assumption then, is, that reconciliation in the aftermath of collective violence is achieved not only through social acknowledgement, but as much through selective amnesia.^[230] At the heart of this commitment is the desire, as Martha Nussbaum writes, to enable us to draw a moral boundary between ourselves and perpetrators of mass atrocities, to tell ourselves that those who commit mass atrocities are nothing like us, and to dismiss the culture that produced them as an aberrant monstrosity.^[231]

However, rather than viewing perpetrators with “the critical eye of an anthropologist disembarking on unknown shores,”^[232] international criminal trials can choose to tell stories that challenge their audience to confront the troubling reality of a perpetrator who is not difference made flesh, but all too human, with a shared capacity for destruction.^[233] This too, is a form of didactic legalism, although of a kind that does not treat the defendant as merely a means to an end, but respects his status as a moral agent who can be warped by circumstances, personal, social, and political, that have a bearing on his choices and agency. Doing so would require a different model of the international criminal trial –– one that does not seek to condense the narrative of mass atrocity onto spare perpetrator silhouettes, but one that acknowledges the diversity of perpetrator experiences that more closely reflect how and why atrocity occurs, persists, and repeats.^[234]

This form of aetiological expressivism, as Mark Drumbl calls it, would unfold along various dimensions, including those that may involve revisiting the substantive doctrines of international criminal law, such as modes of responsibility, defenses,^[235] and mitigatory factors for the purposes of sentencing.^[236] Saira Mohamed, for example, has argued that recognizing the reality of perpetrator––and not just victim––trauma could impact how international criminal courts think about rehabilitation as an aim of punishment.^[237] International criminal tribunals, Mohamed notes, are disinclined to take offender rehabilitation into account in determining the appropriate sentence, and mostly consider it as a factor in subsequent commutation once the defendant has already served a part of the initial sentence.^[238] However, both the perpetrator’s trauma (and the attendant potential for rehabilitation), as well as the failure to suffer appropriately (as an aggravating factor) could be reflected in sentencing decisions.^[239]

Beyond doctrine, important actors in the trial process could also be nudged into changing how they choose to depict perpetrators before and during the trial process. For instance, rather than attempting to fit the perpetrator before them into the category of those “most responsible” for mass atrocity regardless of the degree of his participation in the crimes with which he is charged, prosecutors of international criminal courts could instead bring narrower cases that highlight the expressive value of investigating, charging, and prosecuting certain kinds of crimes –– as the ICC Prosecutor has in fact done in prosecuting the crimes of recruitment of child soldiers and destruction of cultural property.^[240] Doing so would convey a different expressive message than a prosecutorial strategy that views the symbolic prosecution of high-level perpetrators as having enhanced pedagogical value:^[241] that indeed, no one is above the law, including the many who inhabit the “grey zone” between perpetrators and victims.^[242]

Not every perpetrator before an international criminal tribunal will be a denizen of this grey zone, but charting the responsibility of those who do find themselves in this situation of intense moral ambiguity will also require judicial humility. Scholarship on international criminal trials often perceives them as an alternative to accountability mechanisms such as truth commissions and other forms of redress such as lustration, public apologies, and reparations processes.^[243] Mass atrocity trials, however, may well be able to imitate some of the practices of their “restorative justice” counterparts , including in the way their texts represent and depict those they hold responsible for violent crimes. Mechanisms such as the South African Truth and Reconciliation Commission (TRC) have been criticized for attenuated notions of perpetration, given that the very structure of the TRC was premised on the binary distinction between victims and perpetrators and the Commission elected to focus on direct perpetrators of gross human rights violations rather those who participated in the routine structures of apartheid and benefited from them.^[244] The Commission indeed admitted its own limited ability to highlight the political and moral accountability of leaders and ordinary South Africans, by design as well as default, stating that this led to a failure to “recognize the ‘little perpetrator’ in each one of us”.^[245]

The Commission nonetheless acknowledged the need to avoid perpetrator stereotypes and to instead view them as multi-dimensional individuals.^[246] This included the admission that some perpetrators––such as those “acting under orders, as subjects of indoctrination, as subjected to threats, as outcomes of earlier doctrinaire education”––will also be victims. The Commission referred specifically to military conscripts and former African National Congress cadres who were brutalized and thus transformed into torturers as falling within “grey areas”.^[247] Recognizing the need to address the trauma of these perpetrators who may struggle to come to terms with their actions, it argued that any attempt to demonize these perpetrators would defeat the possibility of reconciliation.^[248] It also emphasized that understanding or empathy for perpetrators did not entail absolution from responsibility.^[249]

Much as the Commission did in its final report, international criminal judgments that engage with the politics of judging in the grey zone would open a space for reflection on the moral complexity of what makes a perpetrator, while affirming the mantra that “[e]xplaining is not excusing, understanding is not forgiving.”^[250]

Conclusion

One of the great attractions of glass is its duality. “A solid material that has the molecular structure of a chaotic liquid”, glass is both fragile and durable, transparent and opaque, invisible and reflective.^[251] The bullet proof glass cubicle in the Eichmann trial, “too big for a civet or a bird of paradise, too small for a skeletonic dinosaur… the focus and fulcrum of it all”, was not only enclosed, but also elevated, recalling a museum showcase as if to dispel any lingering doubts as to the accused as an exhibit.^[252] It reportedly inaugurated a trend in enclosing high-profile defendants in glass boxes, serving at once to signal transparency (of the process), dangerousness (of the defendant), security (guaranteed by the state), and visibility (for trial observers).^[253]

Glass objects, of course, do not only confine and segregate. The glass mirror, it is claimed, was as much the genesis of Renaissance perspective, as it was the key to the “discovery of the self” in an age moving towards individualism and self-identity.^[254] The invention of the glass mirror, historians tell us, increased the intensity of human sight, encouraging us to see foreground and background, reflecting the brightness of the world when placed in a dark room. It also constituted a space for introspection, forcing the viewer to gaze through the mirror, not at their corporeal selves but into their innermost being.^[255] This Article has argued that rather than isolating the perpetrator in a glass cage so as to limit the risk of moral contagion, atrocity’s glass booth should serve as a mirror that reflects our common humanity.

1. Prosecutor v Dominic Ongwen International Criminal Court ICC-02/04-01/15-T-22-ENG Confirmation of Charges, Transcript (25 January 2016) 36. ↑

2. Stephanie Nolen and Erin Baines, ‘The Making of a Monster’ The Globe and Mail (Gulu, 25 October 2008) <https://www.theglobeandmail.com/news/world/the-making-of-a-monster/article20389116/> accessed 2 November 2023. ↑

3. Prosecutor v Dominic Ongwen [2005] International Criminal Court ICC-02/04-01/15-T-22-ENG Situation in Uganda, Warrant of Arrest for Dominic Ongwen. ↑

4. Dominic Ongwen, ‘Surrender of senior aide to Joseph Kony is major blow to Lord’s Resistance Army’ The Guardian (Uganda, 7 January 2015) <https://www.theguardian.com/global-development/2015/jan/07/surrender-aide-joseph-kony-blow-lords-resistance-army> accessed 2 November 2023. ↑

5. See Human Rights Watch, ‘Uganda: First ICC Conviction of an LRA Leader’ Human Rights Watch (The Hague, 4 February 2001) <https://www.hrw.org/news/2021/02/04/uganda-first-icc-conviction-lra-leader> accessed 2 November 2023. ↑

6. Prosecutor v Dominic Ongwen International Criminal Court ICC-02/04-01/15-T-22-ENG Trial Chamber IX, Trial Transcript (6 December 2016) 36, 37. ↑

7. Prosecutor v Dominic Ongwen [2021] International Criminal Court ICC-02/04-01/15-T-22-ENG Trial Chamber IX 36; Prosecutor v Dominic Ongwen [2021] International Criminal Court ICC-02/04-01/15-T-22-ENG Sentence, Trial Chamber IX. ↑

8. See David Luban, ‘The Enemy of All Humanity’ in Kevin Jon Heller et al. (eds), Oxford Handbook of International Criminal Law (OUP 2020) 581. ↑

9. See Alette Smeulers et al., ‘Theories, Methods, and Evidence’ in Alette Smeulers et al. (eds), Perpetrators of International Crimes: Theories, Methods, and Evidence (OUP 2019) 29-53. ↑

10. See Zygmunt Bauman, ‘The Uniqueness and Normality of the Holocaust’ in Neil Levi and Michael Rothberg (eds), The Holocaust: Theoretical Readings (Edinburgh UP 2003) 82. ↑

11. Compare with Saira Mohamed who has argued that international criminal tribunals have long struggled with a “deviance paradox”. Saira Mohamed, ‘Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law’ (2015) 124(5) YLJ 1631, 1642-43. ↑

12. Prosecution v. Taylor [2004] SCSL No. SCSL-03-14-I Opening Statement of Prosecutor David M. Crane. ↑

13. See Kathryn Holmes Snedaker, ‘Storytelling in Opening Statements: Framing the Argumentation of the Trial’ (1986-1987) 10 AJTA1 5. ↑

14. See Sergey Vasiliev, ‘Trial’ in Luc Reydams et al. (eds), International Prosecutors (OUP 2012) 700, 749-50. ↑

15. Prosecutor v Sesay et al. SCSL No. SCSL‐04‐15‐T Trial Chamber I, Transcript (5 July 2004) [32]. See also Kaing Guek Eav (alias Duch) [2009] ECCC Case No 001/18‐07‐2007‐ECCC/TC Direction Regarding Opening Statements Direction on the Scheduling of the Trial, Trial Chamber [4]. ↑

16. See Sofia Stolk, ‘A Sophisticated Beast? On the Construction of an ‘Ideal’ Perpetrator in the Opening Statements of International Criminal Trials’ (2018) 29(3) EJIL 677, 688. ↑

17. ibid 684-92. ↑

18. Robert H. Jackson, ‘Opening Statement before the International Military Tribunal’ in The Trial of German Major War Criminals: Proceedings of The International Military Tribunal Sitting at Nuremberg (1945) 98. ↑

19. Nuon Chea, Ieng Sary, Khieu Samphan [2011] ECCC Case No. 002/19-09-2007-ECCC/TC Trial Chamber 110-11. ↑

20. Sesay, Kallon and Gbao (RUF) (n 15) 1, 4, 14, 15, 19. ↑

21. See Stolk (n 16) 688-89. ↑

22. ibid 693–695 (noting a particularly dramatic exchange in the trial of Khieu Samphan before the ECCC, where the defence counsel accuses the prosecution of sounding “like a novel written by Alexandre Dumas”. Nuon Chea, Ieng Sary, Khieu Samphan (n 19) Trial Chamber, Transcript, Defense Response (23 November 2011) [42]. ↑

23. Thijs B. Bouwknegt & Adina-Loredana Nistor, ‘Studying ‘Perpetrators’ through the Lens of the Criminal Trial’ in Alette Smeulers et al. (eds), Perpetrators of International Crimes: Theories, Methods, and Evidence (OUP 2019) 89, 96. ↑

24. See Frédéric Mégret, ‘Practices of Stigmatization’ (2013) 76 Law & Contemporary Problems 286, 296. ↑

25. See Liana Georgieva Minkova, ‘Expressing What? The Stigmatization of the Defendant and the ICC’s Institutional Interests in the Ongwen Case’ (2021) 34(1) LJIL 223, 235, 238-239 (highlighting the relationship between the number of charges and the mode of liability chosen by the prosecutor and the stigma sought to be conveyed). ↑

26. See Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi [2012] ICC No. ICC-01/11–01/11-OA 3 Decision on the request for disqualification of the prosecutor, Appeals Chamber [33]. ↑

27. Mégret (n 24) 300; Stuti Kochhar & Mayeul Hieramente, Of Fallen Demons: Reflections on the International Criminal Court’s Defendant 29 Leiden J. Int’l L. 223, 243 (2016). ↑

28. This was the moniker for Bosnian Serb commander Ratko Mladić before the ICTY. Daniel Boffey and Julian Borger, ‘Ratko Mladić, ‘Butcher of Bosnia’, Loses Appeal against Genocide Conviction’ The Guardian (The Hague, 8 June 2021) <https://www.theguardian.com/world/2021/jun/08/ratko-mladic-butcher-of-bosnia-loses-appeal-genocide-conviction> accessed 2 November 2023. ↑

29. Also known as the “default leader” of the Rwandan genocide, Colonel Théoneste Bagosora was sentenced to life imprisonment by the ICTR. Agence France-Presse, ‘Colonel Théoneste Bagosora is Dead’ Agence France-Presse (Kigali, 26 September 2021) <https://www.justiceinfo.net/en/82511-colonel-theoneste-bagosora-is-dead.html> accessed 2 November 2023. ↑

30. Bosco Ntaganda was referred to as “the Terminator” both by the ICC Prosecutor and several media outlets. See Penny Dale, ‘Bosco Ntaganda – the Congolese ‘Terminator’’ BBC News (8 July 2019) <https://www.bbc.com/news/world-africa-17689131> accessed 2 November 2023. ↑

31. Laura Sjoberg and Caron E. Gentry, Mothers, Monsters, Whores: Women’s Violence in Global Politics (1^st edn, Zed Books 2007). ↑

32. Peter Landesman, ‘A Woman’s Work’ The New York Times (15 September 2000) <https://www.nytimes.com/2002/09/15/magazine/a-woman-s-work.html> accessed 6 November 2023. ↑

33. Prosecutor v. Pauline Nyiramasuhuko et al. [2001] ICTR No. ICTR-98-42-T, Prosecution, Opening Statement 92. ↑

34. Samantha Power, ‘Pale Imitation’ [1996] New Republic <https://newrepublic.com/article/62111/pale-imitation> accessed 2 November 2023. ↑

35. Sjoberg and Gentry (n 31) 151-153 ↑

36. Power (n 34). ↑

37. On the ecclesiastical law of penance, see David Garland, ‘The Criminal and His Science: A Critical Account of the Formation of Criminology at the End of the Nineteenth Century’ (1985) 25(2) BJC 109. ↑

38. See Alan Nissel, ‘Continuing Crimes in the Rome Statute’ (2004) 25(3) MJIL 653, 659. ↑

39. See Aldo Zammit Borda, ‘History in International Criminal Trials’ (2020) 18(3) JICJ 543, 555. ↑

40. Judith N. Shklar, Legalism, Law, Morals, and Political Trials (HUP 1986) 197. ↑

41. Borda (n 39) 555-56. See also Richard Wilson, Writing History in International Criminal Trials (CUP 2011) 108. ↑

42. Sesay, Kallon and Gbao (RUF) [2009] No. SCSL-04-15-T, Trial Chamber I, Judgment.

    . ↑

43. Sesay, Kallon and Gbao (RUF) [2009] No. SCSL-04-15-T, Trial Chamber I, Sentencing Judgment, [55], [57]–[68]. ↑

44. ibid [69]. ↑

45. RUF Sentencing Judgment (n 43) [55]. ↑

46. ibid [69]. ↑

47. See Mark A. Drumbl, ‘When Perpetrators Become Defendants and then Convicts’ in Susanne C. Knittel and Zachary J. Goldberg (eds) The Routledge International Handbook on Perpetrator Studies (Routledge 2019) 120, 123. ↑

48. RUF Sentencing Judgment (n 43) [220]. ↑

49. ibid [225]-[226]. ↑

50. ibid [228]. ↑

51. Prosecutor v Sesay et al. [2009] SCSL No. SCSL‐04‐15‐T A Separate Concurring and Partly Dissenting Opinion of Hon. Justice Benjamin Mutanga Itoe [59]. ↑

52. ibid [67]. ↑

53. See Michela Wong, ‘Making a Murderer in Uganda’ Foreign Policy (Coorom, 20 January 2016). See also Minkova (n 25) 244. ↑

54. Dominic Ongwen (n 6) 36. ↑

55. ibid. ↑

56. ibid 36-38. ↑

57. Prosecutor v Dominic Ongwen International Criminal Court ICC-02/04-01/15-T-22-ENG Pre-Trial Chamber II, Trial Transcript (25 January 2016) 15. ↑

58. ibid 42, 53. ↑

59. ibid 57. ↑

60. ibid 47. ↑

61. ibid 63-65. ↑

62. Prosecutor v Dominic Ongwen [2016] International Criminal Court ICC-02/04-01/15-T-22-ENG Decision on the confirmation of charges against Dominic Ongwen, Pre-Trial Chamber II [150]. ↑

63. Dominic Ongwen (n 7) [2672]. ↑

64. Prosecutor v Dominic Ongwen [2021] International Criminal Court ICC-02/04-01/15 Sentencing Judgment, Trial Chamber IX [65]-[88], [386]-[392], [396]. ↑

65. Prosecutor v. Dominic Ongwen [2022] International Criminal Court No. ICC-02/04-01/15 Dissenting Opinion of Judge Ibáñez Carranza. Sentencing Judgment, Appeals Chamber. ↑

66. See Mark A. Drumbl, ‘Getting an Unforgettable Gettable: The Trial of Dominic Ongwen’ Justice in Conflict (5 February 2021) <https://justiceinconflict.org/2021/02/05/getting-an-unforgettable-gettable-the-trial-of-dominic-ongwen/>. ↑

67. Mark A. Drumbl, ‘Shifting Narratives: Ongwen and Lubanga on the Effects of Child Soldiering’ (Justice in Conflict, 20 April 2016) accessed 2 November 2023. ↑

68. ibid. ↑

69. Drumbl (n 67). ↑

70. ibid. ↑

71. See Carse Ramos, ‘Dominic Ongwen on Trial: Problematizing Definitional Boundaries and Exploring the Possibilities of Socialization’ in Mark A. Drumbl and Jastine C. Barrett (eds), Research Handbook on Child Soldiers (Edward Elgar 2019) 374, 380 (on victimhood as a fluid status). ↑

72. Drumbl (n 67). ↑

73. Prosecutor v Dominic Ongwen [2016] International Criminal Court ICC-02/04-01/15 Third Public Redacted Version of “Defence Brief for the Confirmation of Charges Hearing” [1]-[4], [154]-[155]. ↑

74. Dominic Ongwen (n 7) [2591]-[2592]. ↑

75. ibid [2593]-[2602]. ↑

76. ibid [2614]-[2615]. ↑

77. ibid [2619]–[2621], [2632]. ↑

78. ibid [2658]. ↑

79. ibid [2659]–[2665]. ↑

80. Prosecutor v Dominic Ongwen [2022] International Criminal Court ICC-02/04-01/15A Appeals Judgment [1465]–[1475]. ↑

81. Ramos (n 71) 384. ↑

82. ibid 386–88. ↑

83. Erin K. Baines, ‘Complex Political Perpetrators : Reflections on Dominic Ongwen’ (2009) 47(2) JMAS 163, 171. ↑

84. Ramos (n 71) 387. ↑

85. ibid 387-88. ↑

86. Baines (n 83) 174. ↑

87. ibid. ↑

88. Adam Branch, ‘Dominic Ongwen on Trial: The ICC’s African Dilemmas’ (2017) 11(1) IJTJ 30, 40. ↑

89. ibid. ↑

90. Rosa Ehrenreich Brooks, ‘Law in the Heart of Darkness: Atrocity and Duress’ (2003) 43 VaJIntlL 861, 862. ↑

91. ibid 864. ↑

92. See Prosecutor v. Erdemović [1996] International Criminal Tribunal for the Former Yugoslavia Case IT-96-22-T Sentencing Judgment, Trial Chamber. ↑

93. Brooks (n 90) 865-66. ↑

94. Prosecutor v. Erdemović [1997] International Criminal Tribunal for the Former Yugoslavia Case IT-96-22-A Joint Separate Opinion of Judge McDonald and Judge Vohrah, Appeals Chamber [82]. ↑

95. ibid [76], [80]. ↑

96. ibid [84]. ↑

97. Erdemović Appeals Judgment (n 94) Separate and Dissenting Opinion of Judge Cassese [42]. ↑

98. ibid [47]. ↑

99. Mohamed (n 11) 1656-58. ↑

100. See Brooks (n 90) 881. ↑

101. ibid. ↑

102. ibid. ↑

103. The Statute for the International Criminal Tribunal for Rwanda (Article 6(4)) and the Statute for the International Criminal Tribunal for the Former Yugoslavia (Article 7(4)) mention superior orders for the purpose of clarifying that they will not exclude the criminal responsibility of subordinates but may mitigate their punishment should the Tribunal so decide. This pattern was repeated in community based gacaca courts set up in Rwanda to process cases related to the Rwandan genocide. See Lars Waldorf, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice’ (2006) 79 Temple Law Review 1, 33. ↑

104. Harmen van der Wilt, ‘Justifications and Excuses in International Criminal Law: An Assessment of the Case-law of the ICTY’ in Bert Swart et al. (eds), The Legacy of the International Criminal Tribunal for the former Yugoslavia (OUP 2011) 276. ↑

105. ibid 275. ↑

106. See William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2016) 636–37. ↑

107. van der Wilt (n 104) 295. ↑

108. Thomas Weigend, ‘Kill or be Killed: Another Look at Erdemović (2012) 10 JICJ 1219, 1237. ↑

109. See Boutros Boutros-Ghali, ‘A Grotian Moment’ (1994) 18 FordhamIntlLJ 1609. ↑

110. Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21 LJIL 925. ↑

111. See Joseph Powderly, ‘International Criminal Justice in an Age of Perpetual Crisis’ (2019) 21 LJIL 1. ↑

112. See Sara Kendall, ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’ (2015) 13 JICJ 113, 133. ↑

113. ibid 129. ↑

114. See Minkova (n 25) 225. ↑

115. See David Crane, ‘Dancing with the Devil: Prosecuting West Africa’s Warlords: Building Initial Prosecutorial Strategy for an International Tribunal after Third World Armed Conflicts’ (2005) 37(1) CaseWResJIntlL 1, 2. ↑

116. Gerry Simpson, ‘International Criminal Law: The Next Hundred Years’ in Kevin Jon Heller et al. (eds) The Oxford Handbook of International Criminal Law (OUP 2020) 841, 843. ↑

117. See Roger O’Keefe, International Criminal Law (OUP 2015) 47; Alexander K.A. Greenwalt, ‘What is an International Crime?’ in Kevin Jon Heller et al. (eds), Oxford Handbook of International Criminal Law (OUP 2020) 293. ↑

118. See Ryan Liss, ‘Crimes against the Sovereign: Rethinking International Criminal Justice’ (2019) 113(4) AJIL 727. ↑

119. Win-chiat Lee, International Crimes and Universal Jurisdiction’ in Larry May and Zach Hoskins (eds), International Criminal Law and Philosophy (CUP 2009) 15, 30-32. ↑

120. Alejandro Chehtman, The Philosophical Foundations of Extraterritorial Punishment (OUP 2010) 101-03, 109, 121. ↑

121. See Liss (n 118) 749-54. ↑

122. See David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 569, 572. ↑

123. See Margaret M. DeGuzman, ‘How Serious are International Crimes –– The Gravity Problem in International Criminal Law’ (2012) 51 ColumJTransnatlL 18, 24-25. ↑

124. Michael Giudice and Matthew Schaeffer, ‘Universal Jurisdiction and the Duty to Govern’ in Francois Tanguay-Renaud and James Stribopoulos (eds) Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (Hart 2012). ↑

125. Liss (n 118) 748-49. ↑

126. Anthony Duff, ‘Authority and Responsibility in International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 589-590, 594. ↑

127. See Liss (n 118) 742-46. ↑

128. Larry May, Crimes Against Humanity: A Normative Account (CUP 2005) 80-89. ↑

129. ibid 80-82. ↑

130. David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 YaleJIntlL 85, 86-90, 138-39. ↑

131. ibid 140-42. ↑

132. See Duff (n 126) 590-91, 602-04. ↑

133. See R.A. Duff, ‘Relational Reasons and the Criminal Law’ in Leslie Green and Brian Leiter (eds) Oxford Studies in Philosophy of Law: Volume 2 (OUP 2013) 175. ↑

134. R.A. Duff, ‘Criminal Law and Political Community’ (2018) 16 ICON 1253. ↑

135. ibid. ↑

136. Duff (n 134) 1253, 1255. ↑

137. ibid 1255-56. ↑

138. ibid 1256. ↑

139. See Luigi D.A. Corrias and Geoffrey M. Gordon, ‘Judging in the Name of Humanity: International Criminal Tribunals and the Representation of a Global Public’ (2015) 13 JICJ 97, 98. ↑

140. Rome Statute 1998 Preamble. ↑

141. See Prosecutor v. Krstić [2004] International Criminal Tribunal of the Former Yugoslavia IT-98-33-A, Judgment, Appeals Chamber Judgment [86]; Prosecutor v. Kupreškić [2000] International Criminal Tribunal of the Former Yugoslavia IT-95–16, Judgement [419]. ↑

142. ‘About the Court’ (International Criminal Court) <https://www.icc-cpi.int/about> accessed 4 November 2023. ↑

143. Prosecutor v. Lubanga [2006] International Criminal Court ICC-01/04-01/06 (OA4) Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006, Appeals Chamber [39] ↑

144. Prosecutor v. Al-Mahdi [2016] International Criminal Court Case ICC-01/12-01/15 Judgment and Sentence, Trial Chamber VIII [67]; See Stephen Roach, ‘Value Pluralism, Liberalism, and the Cosmopolitan Intent of the International Criminal Court’ (2005) 4 IJHR 475. ↑

145. Corrias and Gordon (n 139) 108. See also Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13 JICJ 135 (on “we-talk” in international criminal law). ↑

146. Ruti Teitel, Humanity’s Law (OUP 2011) 75. ↑

147. See Sinja Graf, The Humanity of Universal Crime (OUP 2021) 2-3 (developing this account, not as an analysis of contemporary international criminal trials, but in the context of the concept of “universal crime” in European political thought). ↑

148. ibid 2, 13, 27. ↑

149. ibid 3. ↑

150. ibid 32-33. ↑

151. Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2014) 76 Law&ContempProbs 235, 253-256. ↑

152. See Sara Kendall and Sarah Nouwen, ‘International Criminal Justice and Humanitarianism’ in Kevin Jon Heller et al. (eds) The Oxford Handbook of International Criminal Law (OUP 2020) 719, 747. ↑

153. Mirjan Damaska, ‘What is the Point of International Criminal Justice?’ (2008) 83 ChiKentLRev 323. See also Miriam J. Auckerman, ‘Extraordinary Evil: Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 HarvHumRtsJ 39. ↑

154. See Frederic Megret, ‘The Anti-Deterrence Hypothesis: What if International Criminal Justice Encouraged Crime?’ (2021) 19 JICJ 859. ↑

155. Ronald Christenson ‘A Political Theory of Political Trials’ (1983) 74(2) JCLC 547, 576. ↑

156. See Jens Meierhenrich and Devin O. Pendas, ‘The Justice of My Cause Is Clear, but There’s Politics to Fear: Political Trials in Theory and History’ in Jens Meierhenrich and Devin O. Pendas (eds) Political Trials in Theory and History (CUP 2017) 1, 27. ↑

157. Ronald Christenson ‘What Is a Political Trial?’ (1986) 23 Society 25, 26. ↑

158. See generally Ernest Clark, ‘Revolutionary Ritual: A Comparative Analysis of Thought Reform and the Show Trial’ (1976) 9(3) Studies in Comparative Communism 226. ↑

159. See generally William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon & Schuster 1959) 369-78, 1389-97. ↑

160. See Jeremy Peterson, ‘Unpacking ‘Show Trials’: Situating the Trial of Saddam Hussein’ (2007) 48 HarvIntlLJ 257, 261; José E. Alvarez, ‘Crimes of States/Crimes of Hate: Lessons from Rwanda’ (1999) 24 YaleJIntlL 365, 370; Jenia lontcheva Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) 48 VaJIntlL 529, 531. ↑

161. Ron Christenson, Political Trials: Gordian Knots in the Law (2nd edn, Routledge 1999) 9. ↑

162. See Martii Koskenniemi, ‘Between Impunity and Show Trials’ in Jochen A. Frowein et al. (eds) Max Planck Yearbook of United Nations Law, Volume 6 (Brill 2002) 1, 25. ↑

163. See Devin O. Pendas, ‘The Eichmann Trial in Law and Memory’ in Jens Meierhenrich and Devin O. Pendas (eds) Political Trials in Theory and History (CUP 2017) 205, 208-209. ↑

164. See Meierhenrich and Pendas (n 156) 56-57. See also Shklar (n 40) 149. ↑

165. Meierhenrich and Pendas (n 156) 57. ↑

166. ibid 57-58 citing Jackson (n 18). ↑

167. ibid 58-59. ↑

168. See Pendas (n 163) 208. ↑

169. ibid 209. ↑

170. Lawrence Douglas, ‘The Didactic Trial: Filtering History and Memory into the Courtroom’ (2006) 14 EurRev 513. ↑

171. ibid 514. ↑

172. ibid. Judges of international criminal tribunals have openly endorsed some of these didactic aims. See, e.g., Navanethem Pillay, Former President of the International Criminal Tribunal for Rwanda ‘The Rule of Law and the Role of the Individual in the Pursuit of Human Rights’ (Address at the Friedrich-Ebert Stiftung 2003 Human Rights Award Ceremony for the International Criminal Tribunal for Rwanda, 20 May 2003); ‘Judge Denis Byron’s Address to the UN General Assembly’ (2008) ICTR Newsletter 1, 11. ↑

173. Douglas (n 170) 515-516. ↑

174. ibid 516-518 (the other two filters that Douglas mentions are rules of procedure and evidence and substantive crimes with which the accused is charged). ↑

175. ibid 517-518. ↑

176. ibid 225-226. ↑

177. Prosecutor v. Tadić International Criminal Tribunal for the Former Yugoslavia IT-94-1-T, Trial Chamber, Transcript (7 May 1996) 56–57. ↑

178. Robert P. Burns, ‘The Distinctive of Trial Narrative’ (2004) 8 Northwestern University School of Law Public Law and Legal Theory Papers 13. ↑

179. Patricia Ewick and Susan S. Silbey, ‘Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative’ (1995) 29 L&Soc’yRev 197, 212. ↑

180. See Burns (n 179) 27. ↑

181. See Ewick and Silbey (n 180) 205. ↑

182. Frédéric Mégret, ‘“Bring Forth the Accused!” Defendant Attitudes and the Intimate Legitimacy of the International Criminal Trial’ (2019) 36 ArizJIntl&CompL 398. One of the few exceptions to this trend is Adolf Eichmann, who was notably not tried before an international court. ↑

183. See Alette Smeulers, ‘Historical Overview of Perpetrator Studies’ in Alette Smeulers et al. (eds) Perpetrators of International Crimes: Theories, Methods, and Evidence (OUP 2019) 11; Mina Rauschenbach, ‘Individuals Accused of International Crimes as Delegitimized Agents of Truth’ (2018) 28 IntlCLR 291, 292. ↑

184. Rauschenbach (n 184) 292. ↑

185. Mégret (n 183) 402. See also Larissa van den Herik, ‘International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy’ (2016) 110 AJIL Unbound 209, 210. ↑

186. Susan Sontag, ‘Reflections on the Deputy’ in Against Interpretation and Other Essays (Picador 2001) 124, 125. See also Kamari Maxine Clarke, Affective Justice: The International Crime Court and the Pan-Africanist Pushback (DUP 2020) (arguing that the ICC’s perpetrator figure “functions as a mode of erasure [of structural inequalities that drive mass violence] rather than an example of prosecutorial justice cascades.”). ↑

187. Sontag (n 187) 126. ↑

188. Bacon’s paintings were described by critics as “shouting creatures in glass cases”. Joan Acocella, ‘Francis Bacon’s Frightening Beauty’ The New Yorker (17 May 2021) (quoting Wyndham Lewis). ↑

189. See R.A. Duff, ‘Can we Punish Perpetrators of Atrocities?’ in Thomas Brudholm and Thomas Cushman (eds) The Religious in Responses to Mass Atrocity (CUP 2009) 79, 89-91. ↑

190. See R.A. Duff, ‘Process, Not Punishment: The Importance of Criminal Trials for Transitional and Transnational Justice’ (2014) Legal Studies Research Paper Series Research Paper No. 14-03, University of Minnesota Law School 6. ↑

191. ibid 18. ↑

192. ibid 18. ↑

193. ibid 15. ↑

194. ibid 16-17. ↑

195. ibid 17. ↑

196. See Marie-Sophie Devresse and Damien Scalia, ‘An Empirical Analysis of International Criminal Law’ in Kevin Jon Heller et al. (eds) The Oxford Handbook of International Criminal Law (OUP 2020) 27-37. ↑

197. See generally Marlies Glasius and Tim Meijers, ‘Inequality of Arms Reversed?: Defendants in the Battle for Political Legitimacy’ in Kevin Jon Heller et al. (eds) The Oxford Handbook of International Criminal Law (OUP 2020) 678. ↑

198. See Glasius and Meijers (n 198) 251. See also Mégret (n 183) 471-72. ↑

199. Geoffrey Robertson, ‘Playing the Odds in the Justice Game’ The Guardian (19 December 2002). ↑

200. Prosecutor v. Ratko Mladić International Criminal Tribunal for the Former Yugoslavia IT-95-18-I, Trial Transcripts (4 July 2011) 47. ↑

201. Prosecutor v. Ratko Mladić International Criminal Tribunal for the Former Yugoslavia IT-95-18-I, Trial Transcripts (29 March 2012) 282. ↑

202. Mégret (n 1832) 434, 452. ↑

203. Mégret (n 183) 452-53. See also Nancy A. Combs, ‘Procuring Guilty Pleas for International Crimes: The Limited Influence of Sentence Discounts’ (2006) 59 VandLawRev 67, 70-73 ↑

204. ‘Compilation of Statements of Apology Made by Kaing Eav Alias Duch During the Proceedings’ Extraordinary Chambers In The Courts of Cambodia (2012) <http://www.eccc.gov.kh/sites/default/files/publications/Case001Apology_En_low_res.pdf> accessed 2 December 2023. ↑

205. The “humanization” of the perpetrator is generally assumed to be a feature of restorative, rather than retributive, approaches to justice. On this account, however, restoration follows from the retributive trial process of engaging in the communicative practice of calling to account to answer for his wrongdoing. See Duff (n 191) 15-17. ↑

206. On the flipside, as Martha Nussbaum writes, “the further we place the murderer at a distance from us, the less obvious it is that this is a moral agent at all, and the less obvious it consequently is that this person deserves the penalty we reserve for fully responsible agents.” See Martha Nussbaum, Hiding From Humanity: Disgust, Shame and the Law (PUP 2006) 165. ↑

207. See William Schabas, ‘The Contribution of the Eichmann Trial to International Law’ (2013) 26 LJIL 667; J. E. S. Fawcett, ‘The Eichmann Case’ (1962) 38 BYIL 181; D. Lasok, ‘The Eichmann Trial’ (1962) 11 ICLQ 355, 372 ↑

208. Sontag (n 187) 126. ↑

209. See Harold Rosenberg, ‘The Trial and Eichmann’ Commentary (November 1961). ↑

210. Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Routledge 1999) 3. ↑

211. ibid 65. See also Mark Osiel, ‘In Defense of Liberal Show Trials – Nuremberg and Beyond’ in G. Guénaël Mettraux (eds) Perspectives on the Nuremberg Trial (OUP 2007) 704. ↑

212. Osiel Mass Atrocity (n 211) 3; Osiel Liberal Show Trials (n 212) 709. ↑

213. Osiel (n 211) 65–66, 249. ↑

214. See Daphne Eviatar, ‘The Show Trial: A Larger Justice?’ The New York Times (20 July 2002). ↑

215. Shklar (n 40) 157, 160; See Samuel Moyn, ‘Judith Shklar versus the International Criminal Court’ (2013) 4(3) Humanity 473, 481 (stating that Shklar “had no problem with the fact that international criminal law is victor’s justice”). ↑

216. Shklar (n 40) 145. ↑

217. ibid 169-170. ↑

218. ibid 145. ↑

219. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York 1992) 253. ↑

220. Arendt (n 220) 5; Compare with Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2000) 1 Theoretical Enquiries in Law 465, 495. ↑

221. Arendt (n 220) 5. ↑

222. ibid. ↑

223. Sergey Vasiliev, International Criminal Trials: A Normative Theory (Universiteit van Amsterdam 2014) 360. ↑

224. See Gerry Simpson, ‘Objective Responsibility: Show Trials and War Crimes Trials’ (2006) 4 International Commentary of Evidence 1, 8. ↑

225. See Vasiliev (n 224) 337. See also Peterson (n 160) 263, 266-268. ↑

226. Jonathan A. Bush ‘Lex Americana: Constitutional Due Process and the Nuremberg Defendants’ (2001) 45 SLULJ 515, 537-38. ↑

227. Homer Bigart ‘Servatius Wins Respect in Trial; Eichmann Lawyer Admired for Resolute Defense’ The New York Times (Jerusalem, 3 July 1961). ↑

228. Vasiliev (n 224) 363. ↑

229. Christenson (n 155) 575. ↑

230. See Bronwyn Anne Leebaw, Judging State-Sponsored Violence, Imagining Political Change (CUP 2011) 52; Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 HumRtsQ 573-639. ↑

231. See Nussbaum (n 207) 166. ↑

232. ibid citing Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (Alfred A. Knopf 1996) 15. ↑

233. See Nussbaum (n 207) 167. ↑

234. For a similar argument in favor of recognizing perpetrator trauma, see Saira Mohamed, ‘Of Monsters and Men: Perpetrator Trauma and Mass Atrocity’ (2015) 115 ColumLRev 1157, 1168. ↑

235. As noted previously, the ICTY’s position on the defense of duress was widely criticized, both in dissenting opinions and in academic literature. There have, however, been other calls for expanding the list of defenses for international crimes. See Ziv Bohrer, ‘Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology’ (2012) 33 MichJIntlL 749. ↑

236. Mark A. Drumbl, ‘Victims Who Victimise’ (2016) 4 LRIL 217, 244. ↑

237. Mohamed (n 235) 1201-1204. ↑

238. ibid 1201-1202. ↑

239. Drumbl (n 237) 244. ↑

240. See Ward Ferdinandusse and Alex Whiting, ‘Prosecute Little Fish at the ICC’ (2021) 19 JICJ 759, 770. ↑

241. See Alexander Greenawalt, ‘International Criminal Law for Retributivists’ (2014) 35 UPaJIntL 969, 1039; Mirjan Damaška, ‘The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals’ (2011) 36 NCJIL 365, 377-378. ↑

242. The “grey zone” is a term coined by Primo Levi to describe the morally ambiguous world of concentration camp inmates who aided or collaborated with the Nazis. For a characteristically luminous account of judging in the grey zone in the context of the Israeli trial of Rudolf Kastner trial, see David Luban, ‘A Man Lost in the Gray Zone’ (2001) 19 LHR 161-176. ↑

243. See Allison Bisset, Truth Commissions and Criminal Courts (CUP 2012) 9. ↑

244. See Anne Borer, ‘A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa’ (2003) 25 HumRtsQ 1088. See also Mahmood Mamdani, ‘Reconciliation without Justice’ (1996) 46 SARB (for a trenchant critique of the TRC’s legalistically narrow definition of both perpetrators and victims). ↑

245. Truth and Reconciliation Commission of South Africa Report: Volume 1 (1998), chapter 5, [106]–[110]. ↑

246. Truth and Reconciliation Commission of South Africa Report: Volume 5 (1998), chapter 7 [2]. ↑

247. ibid, chapter 7 [53]-[54]. ↑

248. ibid, chapter 4 [44]; chapter 7 [55]. ↑

249. chapter 7 [54]. ↑

250. Christopher Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (Penguin 2001) xviii. ↑

251. Mark Miodownik et al., Stuff Matters: Exploring the Marvelous Materials That Shape Our Man-Made World (1^st edn, Houghton Mifflin Harcourt 2014) 141. ↑

252. ‘Eichmann in the Glass Case’ The Guardian (Jerusalem, 12 April 1960). ↑

253. See David Tait, ‘Glass Cages in the Dock?: Presenting the Defendant to the Jury’ (2011) 86 ChiKentLRev 467, 475–76. ↑

254. Alan Macfarlane and Gerry Martin, Glass: A World History (University of Chicago Press 2002) 63–66, 70–75. ↑

255. ibid. ↑